By the terms of a written contract, the appellant was to provide labor and materials for the remodeling of appellee’s residence. The remodeling was to be completed in 60 days at a total cost to appellee of $10,079-90. Appellee filed suit about 2!4 years later alleging that the appellant had breached the contract. He asked for $3,347.43 as damages, which was appellee’s cost to complete the remodeling. The appellant answered and couterclaimed that the contract was modified by mutual agreement requiring extra work and material which increased appelleе’s obligation to appellant from $10,079-90 to $12,281.00. Appellant alleged that, although he had substantially performed the agreed modifications, the appelleе’s refusal to pay a balance of $2,531.90 on the additional sum agreed upon made further performance impossible and constituted a breach of contract, discharging any duty appellant owed appellee. He sought to recover as damages $2,531-90 as the balance owed on the contract аs modified. Appellee denied the allegations in appellant’s counterclaim. The trial court, sitting as a jury, found, however, that the original contract had been modified by agreement of the parties; the appellant was entitled to an additional $836 over the original contract price for work and material furnished by him not required by the original contract; however, appellee had expended $1,-531.42 in securing work and materials which the appellant had agreed tо do and failed to provide; the appellee had paid the appellant $400.00 over the original price of $10,079-90, or a total of $10,479.90; the court then substraсted the $400.00 from the appellant’s $836.00 setoff, leaving a $436.00 setoff. This was subtracted from the $1,531.42, leaving $1,095.42 owed appellee by appellant.
Since the case was tried before the court, sitting as a jury, after July 1, 1979, findings of fact by the court will not be set aside unless they are clearly against the preponderance of the evidеnce. Taylor v. Richardson,
We first consider appellant’s contention that the court erred in finding that the contract price “was modified only $836.00 over the” originаl contract price. He primarily argues that since the appellee’s attorney, rather than the appellee himself, verified the responses to the requests for admission, the facts in the requests are deemed admitted, citing Young, Adm’r v. Dodson,
That for all the above stated additions, expansions, and modifications, plaintiff agreed to pay defendant $2,-202.00 above the January 20, 1977 contract price of $10,079.90.
The appellee responds that even if the initial responses were improper, it was within the discretion of the court to allow his motion to make a properly verified оral or written response after the statutory time had expired, citing Kingrey v. Wilson,
We next consider appellant’s contention that the court erred in granting judgment for the appellee inasmuch as the evidence, when viewed in the light of the court’s finding that the contract was modified, clearly indicates an anticipatory breach by the appellee. We must agree. According to аppellant’s pleadings, the appellee had agreed to increase the $10,079-90 contract price to $12,281.00 for certain modifications requiring additional labor and materials. According to his testimony, appellee had paid him $400.00 of the extra $2,651.00 he had agreed to pay for the modifications. When appеllee informed him that he wasn’t going to pay “extra money”, the appellant stopped work on the house. However, he remained willing to perform the cоntract which was substantially performed, if the appellee would pay him the balance owed. The witnesses corroborated appellant’s testimony that appellee requested and agreed to pay for certain modifications on the remodeling which required extra labor and materials. According to one witness, appellee agreed to pay appellant “over $2,000.00” for the modifications.
We have held that the failure of one party to perform its contractual obligations releases the other party from its obligations. Cummings v. Lord’s Art Galleries,
Here, despite appellee’s testimony there was no subsequent agreеment with respect to the original contract and the $400.00 overpayment was a mistake, the court found that the contract was modified by the agreement of thе parties. The court awarded $836.00 damages to the appellant as a setoff. The evidence, as found by the court, clearly established a modificatiоn agreement and that the appellant stopped work only when he was refused payment for the agreed modifications.
The anticipatory breaсh of a contract justifies the other party to treat the contract at an end and permits an action for a breach of the contract. Spenсer Medicine Co. v. Hall, supra. Williston on Contracts, 3d § 1397, reads in pertinent part: “Anticipatory breach does not change the nature of the contract, and thе normal rule of damages is, therefore, the same as if the breach had not taken place until the time fixed in the contract for performance.” The anticipatory repudiation here excused any performance by the appellant and negated the right of the appellee to recovеr expenditures made by him to complete the remodeling modifications.
According to the request for admissions, which must be deemed admitted, as previously discussed, the appellant is due a balance of $2,202.00 on the contract. However, as we understand appellant’s argument, he asks for $1,401 as damages sustained by him due to appellee’s breach of the contract. In arriving at this figure, it appears that appellant is willing to give appellee credit for $850.00 for pouring a concrete driveway together with his $400.00 overpayment on the original contract price. He then subtracts these two figures from $2,651.00, leaving $1,401.00 as being the balance duе on the modified contract. We are unable to reconcile his evidence as justifying $2,651.00 as being the amount due before these credits. However, he is cleаrly due $2,202.00 as reflected by the request for admissions. Therefore, when we give appellee credit for $850.00 plus $400.00, as it appears appellant is willing to do, we hоld that the net balance appellee owes appellant is $952.00.
The judgment is reversed and the cause remanded with directions to enter a judgment for $952.00 in favor of appellant as damages.
Reversed and remanded.